Joint representation of spouses in estate planning: the saga of Advisory Opinion 95-4.

• Author: Russell, Hollis F.
• Position: Florida

After extended proceedings commencing in 1995, the final text of Advisory Opinion 95-4(1) was approved by The Florida Bar Board of Governors at its May 1997 meeting. Advisory Opinion 95-4 provides guidance regarding confidentiality and conflict of interest concerns for attorneys undertaking to represent spouses as joint clients in estate planning matters.(2) A summary of Advisory Opinion 95-4 is contained in its headnote prepared by the Ethics Department of The Florida Bar:

In a joint representation between husband and wife in estate planning, an attorney is not required to discuss issues regarding confidentiality at the outset of representation. The attorney may not reveal confidential information to the wife when the husband tells the attorney that he wishes to provide for a beneficiary that is unknown to the wife. The attorney must withdraw from the representation of both husband and wife because of the conflict presented when the attorney must maintain the husband's separate confidences regarding the joint representation.

This article examines the holdings of Advisory Opinion 95-4, with a particular focus on its procedural history and the analysis developed during deliberations prior to its final issuance.

In 1995, the Real Property, Probate and Trust Law Section approved the recommendation of its Estate Planning, Probate and Trust Professionalism Committee to request an ethics advisory opinion with respect to joint representation of spouses in estate planning.(3) Professor Geoffrey C. Hazard, Jr. was retained as advisor and reporter for the project.(4)

The advisory opinion was sought because of the sparse guidance on this subject under the Florida Rules of Professional Conduct (FRPC) and ethics opinions and case law in Florida.(5) At the time the request for the opinion was made, two national organizations of trusts and estates practitioners had recently concluded major projects relating to this subject focusing on the Model Rules of Professional Conduct (MRPC). The Special Study Committee on Professional Responsibility of the American Bar Association Section of Real Property, Probate and Trust Law published three reports, one of which directly addressed multiple representation of spouses (the study committee report).(6) Separately, the American College of Trusts and Estates Counsel (ACTEC) released its own Commentaries on the Model Rules of Professional Conduct (the ACTEC commentaries), which also devoted significant consideration to this subject.(7) An important objective of the RPPTL Section in seeking an ethics advisory opinion was to promote the feasibility of joint representation in estate planning.(8)

In making its request for an ethics advisory opinion, the RPPTL Section submitted a generalized situation to illustrate the ethical issues for which guidance was sought.(9) The situation presented by the RPPTL request letter(10) and addressed in Advisory Opinion 95-4 follows:

Lawyer has represented Husband and Wife for many years in a range of personal matters, including estate planning. Husband and Wife have substantial individual assets, and they also own substantial jointly held property. Recently, Lawyer prepared new updated Wills, which Husband and Wife signed. Like their previous Wills, the new Wills primarily benefit the survivor of them for his or her life, with beneficial disposition at the death of the survivor being made equally to their children (none of whom were born by prior marriage).

Husband, Wife, and Lawyer have always shared all relevant assets and financial information. Consistent with previous practice, Lawyer met with Husband and Wife together to confer regarding the changes to be made in updating their Wills. At no point since Lawyer first started to represent them did either Husband or Wife ever ask Lawyer to keep any information secret from the other, and there was never any discussion about what Lawyer might do if either of them were to ask Lawyer to maintain such a separate confidence.

Several months after the execution of the new Wills, Husband confers separately with Lawyer. Husband reveals to Lawyer that he has just executed a Codicil (prepared by another law firm) which makes substantial beneficial disposition to a woman with whom Husband has been having an extra-marital relationship. Husband tells Lawyer that Wife knows about neither the relationship nor the new Codicil, as to which Husband asks Lawyer to advise him regarding Wife's rights of election in the event she were to survive Husband. Lawyer tells Husband that Lawyer cannot under the circumstances advise him regarding same. Lawyer tells Husband that Lawyer will have to consider Lawyer's ethical duties under the circumstances. Lawyer tells Husband that, after consideration, Lawyer may determine to disclose to Wife the substance of Husband's revelation if Husband does not do so himself.

Ethical Dilemma Arising From a Separate Confidence

The central issue in Advisory Opinion 95-4 concerns the lawyer's duties under FRPC 4-1.4(11) (communication), FRPC 4-1.6(12) (confidentiality), and FRPC 4-1.7(13) (conflict of interest) with respect to the husband's communication to the lawyer of the information concerning the codicil and the extra-marital relationship, which is defined in Advisory Opinion 95-4 as the "separate confidence." Advisory Opinion 95-4 begins its analysis by characterizing the lawyer's representation of the husband and wife as a "joint representation," consistent with the RPPTL request letter,(14) although Advisory Opinion 95-4 does not address the differences inherent in a "joint representation" as compared to a so-called "separate representation" of spouses in estate planning. A "joint representation" generally refers to representation of co-clients having similar goals and interests in which it is understood that information relating to the subject of representation will be shared by the co-clients.(15) A "separate representation" may also involve sharing of information but would permit each client to disclose to his or her attorney certain information which is not to be shared with the other co-client.(16) Absent agreement otherwise, the "default" rule is that a co-client relationship involving estate planning for married persons generally is presumed to be a joint representation.(17)

Advisory Opinion 95-4 devotes substantial analysis to the positions taken in the study committee report regarding separate confidences imparted in a joint representation. The study committee report focuses on the ethical dilemma which confronts the attorney under, on the one hand, the duty of confidentiality under MRPC 1.6 which the attorney owes the confiding client (husband) and, on the other hand, the duty under MRPC 1.4 to communicate to the nonconfiding client (wife) important information which naturally relates to the attorney's representation of her.(18) The study committee report recommends that the attorney seek either to persuade the confiding client to disclose the separate confidence to the other spouse or to obtain express authorization for the attorney to do so. Assuming (as would be expected in the situation presented in Advisory Opinion 95-4) that the confiding client is unwilling to do so, analysis of the study committee report focuses on the insoluble nature of the ethical dilemma -- whatever action the attorney takes seemingly will fail to comply with an ethical duty owed by the attorney to one or the other of the attorney's two clients. Applied to the situation presented in Advisory Opinion 95-4, compliance with the lawyer's duty to inform the wife of material information relating to the lawyer's representation of her would run contrary to the lawyer's duty of confidentiality owed to the husband -- but compliance with the lawyer's duty of confidentiality relating to the husband's separate confidence would be contrary to the lawyer's duty owed to the wife to communicate important information to her.

The study committee report and the ACTEC commentaries conclude that the attorney, faced with this insoluble dilemma, must act as fiduciary toward the joint clients(19) and may exercise discretion(20) to determine whether to make disclosure to the nonconfiding client.(21) The study committee report states that the attorney should balance the potential for material harm to the confiding client (husband) which may be caused by revealing the separate confidence against the potential for material harm to the nonconfiding client (wife) which may be expected by failure to reveal same.(22)

Advisory Opinion 95-4 does not follow this approach. Instead, it gives precedence to the duty of confidentiality:

[The] duties of communication and confidentiality harmoniously coexist in most situations. In the situation presented, however, Lawyer's duty of communication to Wife appears to conflict with Lawyer's duty of confidentiality to Husband. Thus, the key question for our decision is: Which duty must give way? We conclude that, under the facts presented, Lawyer's duty of confidentiality must take precedence. Consequently, if Husband fails to disclose (or give Lawyer permission to disclose) the subject information to Wife, Lawyer is not ethically required to disclose the information to Wife and does not have discretion to reveal the information. To the contrary, Lawyer's ethical obligation of confidentiality to Husband prohibits Lawyer from disclosing the information to Wife.

In analyzing the rationale underlying the discretion approach (which the opinion refers to as a "no-confidentiality" position), Advisory Opinion 95-4 identifies and rejects two separate bases for it. The first basis advanced is that clients have an expectation that everything communicated to the attorney by one client which relates to the joint representation will be shared with the other client. Citing law journal authority as well as a passage in the study committee report itself, the opinion rejects this argument, stating that...